Citation Nr: 1621033	
Decision Date: 05/24/16    Archive Date: 06/02/16

DOCKET NO.  08-10 088	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an evaluation than 10 percent for bilateral pes planus.
 
2.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (IU).


REPRESENTATION

Appellant represented by:	Danielle Obiorah, Attorney


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel

INTRODUCTION

The Veteran served on active duty from June 1975 to September 1981. 

This matter comes before the Board of Veterans' Appeals (Board) from a February 2006 rating decision, decided by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina which-in pertinent part, denied the benefit sought on appeal. The Veteran's claims file was later permanently transferred to the Atlanta, Georgia RO (Montgomery RO).

The issue of entitlement to IU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran perfected an appeal of the issue of entitlement to a rating higher than 10 percent for bilateral pes planus.

2.  When before the Board in October 2011, the Board remanded the entire appeal for additional development.

3.  A June 2012 rating decision granted an increased rating for the pes planus.

4.  In an August 2012 communication, it was expressed that the Veteran was satisfied with the increase.


CONCLUSION OF LAW

The criteria for dismissal of an appeal by the Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2014).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2014).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

Discussion

When last before the Board in October 2011, an increased rating claim for pes planus was also in appellate status.  Subsequently, a June 2012 rating decision increased the rating percentage for this disability.  In an August 2012 communication, it was expressed that the Veteran was satisfied with the increase.

In light of the Veteran's action, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to further review the appeal and it is dismissed.


ORDER

The appeal of the issue of entitlement to an increased rating for bilateral pes planus is dismissed.


REMAND

In January 2015, the Veteran's then attorney of record withdrew from the case, and informed the RO in April 2015.  (01/27/2015 VBMS entry-Third Party Correspondence; 04/09/2015 Notification Letter).  The AOJ certified the appeal to the Board in May 2015.

In July 2015, the Veteran retained another attorney who in turn provided the AOJ Notice of her appearance and submitted a formal request to the AOJ for a Board hearing at the RO via video conference.  (07/17/2015 VBMS entry-VA 21-22-Power of Attorney; Third Party Correspondence).  The attorney had not been provided a copy of the claims file at the time.

Once the AOJ certifies or returns an appeal to the Board, all correspondence, to include hearing requests, must be submitted to the Board.  See 38 C.F.R. § 20.1304 (2015).  In this case, however, since the newly retained attorney did not yet have access to the documentation in the claims file at the time, the Board waives the error of submitting the hearing request to the RO instead of to the Board, and finds the request timely.

Accordingly, the case is REMANDED for the following action:

The AOJ shall schedule a Board hearing via video conference on the issue of entitlement to IU, as requested, as soon as is practical.  Should the Veteran subsequently withdraw the request, that fact should be documented in the claims file.  Then, if all is otherwise in order, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


						(CONTINUED ON NEXT PAGE)






This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs